It isn’t possible for anyone, including court, ‘to know law’.

‘Fake News’ by Reuters on Rosmah Mansor . . . In law, those who accuse must prove it.

In today’s society, lawyers are the true modern Sophists — arguers for hire. And the court is their battleground where they try to outshine each other in a dazzling show of Sophistry!

An attorney is even legally obligated to argue as persuasively as they can for their client’s best interests, irrespective of his or her innocence!

In taking the cue from what the High Court judge said on the SRC International case — “Najib didn’t return the RM42m to SRC” — there’s a case for Rosmah Mansor, Najib’s wife, depositing in court the alleged sum in the solar hybrid project which changed hands.

There’s no reason why the court can’t free Rosmah, and return the bail money and passport, after the Attorney General drops the charges against her under Article 145 of the Federal Constitution.

If the court subsequently discovers that she didn’t derive personal benefits, based on bribery and corruption, the deposit money can be returned to her.

Let’s not go into the intentions of the Company on the solar hybrid project.

The charges against co-accused Rizal Mansor, purportedly an Aide and no relation, were apparently dropped after he turned state’s evidence. Therein lies a fatal flaw in law, relying on a person who has no credibility, and who was allegedly party to illegalities.

Wither the spirit of the law, read with the letter of the law on Rizal Mansor!

Federal Court

The jury is still out on whether the Federal Court will find the spirit of the law, read with the letter of the law, on Najib’s SRC International and 1MDB cases.


A case is about the relevant facts, issues arising, and the law applicable viz. the spirit of the law, read with the letter of the law, the greater emphasis being on the former.

CJ Richard Malanjum implied in his farewell address that lawyers, the legal fraternity and the court in Malaysia belabour in the delusion that the letter of the law, by itself, is the sum total of the rule of law.

It isn’t clear from the Najib and Rosmah cases in court where Malaysia stands on money laundering, personal benefits based on bribery and corruption, plea bargaining, state witness, tax evasion, and tax evasion under the guise of money laundering, among others.

We can keep things in perspective if we recall CJ Richard Malanjum’s farewell address on the rule of law.

Attorney General Tommy Thomas, another example, made several allegations in his memoirs, “My Story: Justice in the Wilderness” on the appointment of judges, excessive interference by the executive in the judiciary and selective prosecution. It’s not known whether he mentioned selective persecution. The gov’t’s Task Force on known allegations held its first meeting in Kuala Lumpur on Thurs 23 Dec 2021 and will wrap up its Report in six months, according to de facto Law Minister Wan Junaidi Tuanku Jaafar.

Suspended

Court of Appeal judge Hamid Sultan Abu Backer was suspended after he made an explosive allegation at an International Law Conference in Aug 2018 on his dissenting judgment on a unilateral conversion case.

In Feb 2019, according to the media, Hamid affirmed an explosive 65-page affidavit in support of a suit filed by lawyer Sangeet Kaur Deo against Chief Justice Richard Malanjum.

The media also reported that Hamid had alleged that there had been interference in the Anwar Ibrahim sodomy case and a sedition appeal by the late Karpal Singh.

In the latest controversy, public scrutiny has been brought to bear on the marking system — a state secret — used in the Certificate in Legal Practice (CLP) examination which eliminates, every year, 20 to 25 per cent of the candidates. It has been allegedly that the exam answers don’t matter as the focus is on ensuring that the great majority of candidates fail. That eliminates their chances, despite holding a law degree, of being ever admitted to the High Court.

Talent pool

In other jurisdictions, England and Wales for example, the talent pool for the legal profession has been widened and includes non-law degree graduates.

In India, according to media reports, half the “lawyers” going to court have no law degrees. Of the remainder, it has been alleged that many “lawyers” in court have “bogus” degrees in law and other disciplines.

Apparently, based on their sheer performance in court, Clients prefer those masquerading as “lawyers”, an offence under the law.

The University of London tells law students, “we will first mark you for the English language, next evidence of wide reading, and finally for the ability to think like a lawyer”.

“How do you think like a lawyer?”

“No one knows. We will only know when we see it. The proof of the pudding is in the eating.”

“There are no right or wrong answers in a law exam.”

“It’s not possible for anyone to know law.”

“Law, ultimately, is the power of language viz. the English language.”

We know from returning Malaysian law graduates, from England for example, that being weak in the English language they rather risk the CLP back home than run the gauntlet at the English Bar. Besides, it’s expensive to do the English Bar.

England and Wales, from Sept this year, have separated Advocates and Solicitors as two distinct professions.

Royal Commission of Inquiry

There should be a Royal Commission of Inquiry (RCI) on all the above matters. There’s a case for including foreign judges and QCs from the Commonwealth in the Malaysian judiciary.

AG Tommy Thomas, before he resigned on Fri, 28 Feb 2020, invited the public to propose legislation by providing a Draft and suggest law reforms.

He said there were no jurists — legal scholars — in Malaysia. He should have read my Memo on reforms in law education.

I would venture that there are no constitutional experts in Malaysia. The unthinking media refers to Tommy Thomas, Shad Faruqi, Gurdial Singh, Aziz Bari and Azmi Sharom as constitutional experts.

If they were really constitutional experts, as installed by the media, the Federal gov’t would not be non-compliant on the Malaysia Agreement 1963 (MA’63) and be found wanting in so many other areas in the Borneo Territories — Sabah and Sarawak — and in Malaya.

Conventions, the working of the Constitution, are even more important than the supreme law of the land.

Conventions are not law.

No court will hear Applications on conventions.

The court is only about law.

I sent the AG and Bar Council President George Vergese a copy of the Memo to de facto Law Minister V. K. Liew on reforms in law education.

None replied.

Airport meeting

I met Batu Sapi MP and Warisan Party Chairman Liew by chance at the Kota Kinabalu International Airport one week before he was appointed de facto Law Minister. I mentioned the Memo. He agreed to accept it.

Before our first ever meeting, and as it turned out the last, Liew called me now and then after a WhatsApp message from me.

I never took any of the calls.

I didn’t want to risk rhetoric and polemics on the WhatsApp messages.

He would respond with WhatsApp messages. He always begged to differ.

Away from that little digression on the Najib and Rosmah cases, under our adversarial system of justice, there’s no plea bargaining. Yet, in the Riza Aziz — Rosmah’s son — and Ahmad Maslan cases, the practice was reportedly adopted. Riza Aziz was allowed to keep 60 per cent of the money involved i.e. the amount not seized by the US Dept of Justice (DoJ). In short, he only “gave up” money that was already seized.

Former Sabah Chief Minister Musa Aman, facing 46 money laundering charges, admitted in court that he collected RM380m in political donations.

We don’t know, after all the charges were dropped, whether the Inland Revenue Board (IRB) went after Musa Aman for allegedly not reporting the political donations, tax evasion and tax evasion under the guise of tax avoidance.

Bank Negara

There were no media reports on whether Bank Negara went after Musa Aman for money laundering on the RM380m.

RM380m is over nine times the RM42m in Najib’s SRC International case. No evidence was produced in court that Najib derived personal benefits to the extent of RM42m. Anyway, let’s not go there. It’s another story, already reported, and can be revisited again.

International law has defined money laundering as having assets in excess of what can be legitimately accumulated during a lifetime.

Such assets can be frozen, seized and forfeited by the state by civil action. The assets, almost in their entirety, would be forfeited except for a house and a modest sum of money.

Criminal cases would be instituted only if the civil action is challenged.

In the US, the DoJ didn’t pursue civil action against Riza Aziz and fugitive fund manager Jho Low on assets allegedly linked to 1MDB.

Instead, the DoJ accepted plea bargaining by the errant duo. They were allowed to retain some of the suspect assets.

Reminders

All these remind us of Attorney General Tommy Thomas’ memoirs, CJ Richard Malanjum’s farewell address and Court of Appeal judge Hamid Sultan Abu Backer’s international address and explosive affidavit.

There’s also the little matter of “korek korek korek” (correct) lawyer V. K. Lingam on allegations that judges farmed out the writing of judgments.

It’s my considered opinion that there’s no shame if the Federal Court enlists the assistance of a Panel of retired Federal Court judges in the Commonwealth, for their subject matter expert opinions, before issuing the grounds of judgment and Rulings.

It can remain a state secret.

The Court of Appeal and High Court should not seek the assistance of a Foreign Panel.

Their inadequacies will be covered by the Federal Court.

Those facing the Magistrate’s Court and Sessions Court will no doubt suffer if there’s miscarriage of justice. Under the two-stage Appeal process, they can’t go beyond the High Court and Court of Appeal respectively.

It has been suggested that Najib would be making a “big mistake” if he relies solely on “hotshot” — Najib said that to the media — lawyer Shafee Abdullah for the Federal Court stage of his Appeal against the Court of Appeal upholding, on Wed
08 Dec 2021, his High Court conviction on the SRC International case.

Sophistry

Najib may need advice on the Appeal from a Panel of retired Federal Court judges in the Commonwealth and QCs.

This isn’t about sophistry or miscarriage of justice but looking for and pointing out novel developments in law which the Federal Court can find and declare.

Of course, on miscarriage of justice, the Agong decides, notwithstanding the Pardons Board and the Federal Court.

No court will go against Agong on Pardon. The matter is nonjusticiable. Habis cerita loh!

Blessed Christmas and Happy New Year. God bless, all the best. Take care, stay safe.

Be good to yourself (Many people are bad to themselves.) – New Malaysia Herald

About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.

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